Thursday, December 12, 2013

PTO/NTIA: notice and takedown

Voluntary agreement among wireless companies will be
announced today re: cellphone unlocking.

We will not be talking about fundamental changes to notice
and takedown, but instead take 512 as it is and see if there are areas where we
can improve its implementation.

What areas might be fodder for multistakeholder
consultations?

Panelists:

Victoria Sheckler, Recording Industry Association of America

In 1998, our industry was physical.Today, nearly 2/3 of our revenues are from
digital sources. Over 500 authorized services worldwide. We are working hard to
create new services to give consumers engagement with music, drive new tech,
and create partnerships/licensing everywhere.Our work is being impacted by online infringement.In 1998, less than 30% of Americans had
access, less than 3% broadband. Today, 70% have access to broadband. Any file
can be infinitely populated all over. Any file taken down can immediately come
up over and over again. Katy Perry’s “War,” they’ve sent over 300 takedown
notices for the same site to Google.38
million requests to Google in the past couple of years, as well as millions to
website operators themselves. Current system is outdated, simply isn’t working.
Opportunity to address it through volunteer initiatives.

Options: (1) role of search.Google has said that it doesn’t want search results to direct users to
results that violate copyright law.Promotion of authorized services.Other possibilities, like icons to identify authorized services.

(2) Address whack a mole problem.We send millions of notices on the same
tracks and they continue to pop up. Unnecessary and undue burden on website
operators and content community.

Most important thing for cooperation on notice and takedown
is to focus on what’s been working.Transparency and cooperation.Transparency
around notices—who’s sending them, for what—and also trusted copyright removal
program (TCRP), which many in the room know about. RIAA is one of the
members.Stemmed from Google’s
recognition that many notices were being submitted by a small number of
submitters, such as RIAA, Microsoft, etc. Many were reliable, high-accuracy
submitters, and we thought we could do better with such sophisticated, accurate
entities.Didn’t want to delay them with
processing notices from nonsophisticated submitters, of which there are a lot
that are incomplete or abusive.

Today, TCRP members submit 95% of all removal notices, and
in the last 30 days we’ve processed millions of such notices.That’s been done with consultation with large
submitters. This has also improved accuracy/accountability of notice and
takedown industry. There are now many independent takedown vendors that search
the internet and prepare takedown notices on their behalf and submit them to
Google and other ISPs. Some are poorly behaved; sending takedowns that were
inaccurate without copyright owners’ knowledge. Transparency report has allowed
rightsholders to police their own vendors. Vendor community also likes it because
it allows the accurate ones to get credit for it.

Transparency report also lets users inform us of errors, by
looking for their own websites.24
million/month, we don’t catch all errors; the public helps as well. We ejected
2 members from TCRP last year for persistent, repeated failure to submit
accurate notices. Above and beyond what DMCA requires; the only way we can
punish misuse is by having this extra program; they can still submit DMCA
notices.Would love to hear about
similar efforts that have worked, rather than rehash of stale debates.

Sees improper takedowns all the time, from home videos of
dancing babies to lectures by significant academics, to entire YT channels of
news reporting, and that’s just her docket right now. When these happen, they
call the legitimacy of the whole process into question. Content owners and ISPs
say they don’t want these either, precisely because of the legitimacy issue. So
why don’t we create a set of meaningful best practices for fair use? Building
in strategies to flag potential fair uses—obvious fair uses, which are a subset
of fair uses but do indeed exist.Avoiding takedowns based solely on keywords, as happened to Cory
Doctorow’s book Homeland which was
targeted for mass takedowns based on ownership of the TV show.Another alternative: ADR. Counternotice isn’t
really good enough for people targeted by improper takedowns—a way to request
quick review.

Service providers can also do a lot.Simple things: forwarding DMCA notices to
users.Many times people contact her and
say they’ve gotten a takedown; hard to figure out not just who sent it but even
whether it was a compliant notice.Can’t
negotiate Content ID process, which is hard to figure out.Make it hard to shut down an entire account
by sending a flurry of notices. Trusted users with an extra opportunity to
appeal.

Susan Cleary, Independent Film & Television Alliance

Small companies. We get financing by ensuring that our
partners have exclusive rights around the world. Need a strong regime in place.
Notice and takedown/notice and notice in other countries are one of the only
tools that independent rightholders get to exercise, and it’s whack a mole. If
you might not be able to get production financing together to produce The Hurt Locker, you don’t just lose
revenues, you don’t get the film. Need more efficiency in notice and
takedown.Independent rightsholders don’t
have the money to use expensive technology of vendors/major rightsholders.(I thought the market could fix everything—I guess
that only works for some people.)Lack
time, money, staff. Need legal framework to give ISPs the cover to do what they
need to do.Voluntary agreements need to
be transparent, and we need the government because without the government
certain people are left out.We don’t
get powers of attorney to litigate for our members; they’re on their own.
Search engines need to step up and point to legitimate product. Need threat of
gov’t action for people to act in good faith, transparent and inclusive
manner.(Competing narratives of what
constitutes inclusion—fascinating from a rhetorical perspective.)

Troy Dow, The Walt Disney Company

Congress intended 512 to be much more than a regime in which
people sent notices and they were responded to.(??)Increasing dissatisfaction
with operation as effective tool.Did
intend it to be a framework to provide incentives for copyright owners and ISPs
to work together and detect and deal with infringement. Tech provides a role in
providing solutions and Congress intended for 512 to be a vehicle for working
together. UGC is an example of where notice and takedown wasn’t up to the
magnitude of infringement in UGC (hunh? I don’t think that acronym means what
he thinks it means, which is one reason I don’t like the term).Cooperative tech solutions—we’ve managed to
take significant infringement issues and at least put them aside with the UGC
principles endorsed by some service providers and copyright owners.

Christian Genetski, Entertainment Software Association

Increasingly our members are exclusively cloud-based. The
balance the DMCA is aimed to strike are very important to our membership on
both sides. Our trade association plays a vital role for our industry by
sending many millions of DMCA notices per year; most of our members also have
DMCA agents that receive and process notices as well, and we take both sides
seriously. What’s important to us is getting past having all the voices talking
past one another, exchanging rhetoric about what they don’t like. Look at data.
There aren’t really black hats and white hats, but rather a spectrum. One site,
we sent 22,000 URLs for infringing copies of the same game title (we had API
access); another site we sent 10-20 notices a month, but they took a couple of
weeks to process them. Lower burden, lower costs, but for DMCA’s aims of
reducing illegitimate content, the first instance was better because of the
rapidity of the takedown process.Expose
outliers.

David Snead, Internet Infrastructure Coalition

Internet infrastructure is made of 30,000 small to medium
sized businesses.Most infrastructure
providers aren’t content providers like Disney, nor are they like Google with
large resources to devote to understanding fair use. They know what the DMCA is
but don’t know the nuances.Consider the
lack of significant resources.

Voluntary arrangements need to keep in mind that the people
implementing them won’t have a lot of resources. 512 is a relatively plain
statute. Relatively easy to understand. What’s happened is that providers have
muddled it and made it more complicated than they need to be. Most important
result: best practices so that small and medium sized businesses can understand
what these notices say and respond appropriately.

Von Lohmann: Google has already taken many of those steps,
such as demotion in ranking algorithm based on number of DMCA notices; we’re
the only member of the search engine industry that has done that.There are over 66,000 registered DMCA agents in
the Copyright Office’s database. That’s not just big companies. As I understand
the mission, it is multistakeholder discussion. To talk search doesn’t do
justice to these small/medium businesses with a dog in this fight. Google is
interested in having these discussions, and meets with copyright industry
members on a regular basis w/r/t search and YouTube. For a multistakeholder
discussion of best practices, though, we need to get some of those processes
out in the open, get data, get transparency, so that the others can learn from
those examples. A focus on search in this process would be counterproductive.

McSherry: Another missing voice: technologists. If we start
mucking with search, for example, we need to know how that will affect search
and searchers’ behavior.Rightsholders +
ISPs + EFF is insufficient. Related to that, transparency for the public is key
to meaningful participation/comment.

Cleary: while we think it’s important that searches point to
legitimate product, people think the internet is unlimited space but it’s
not.Be careful to understand that
rightsholder has right not to make available/control distribution and
distribution windows. Not every product has a legitimate space on the web.

Von Lohmann: as Dow knows, there’s no safe harbor for “search
engines,” but rather for entities that rely on the ability to provide links,
and there are far more than just a few of those. If you want a multistakeholder
discussion about improving notice and takedown, singling out search isn’t true
to the Green Paper’s goals.

Q: say more about transparency.

Sheckler: Google has done a great job of letting us know how
many notices it received. But we don’t know how it’s working—need more transparency
on that.(?)

McSherry: Google’s transparency reports have been
tremendously helpful for understanding what is happening.Need more transparency on rightsholders side,
big and small. Hard to understand how to suggest improvements without a window
into how rightsholders or their agents decide what to target. Would further the
conversation with more information; we know it’s not perfect so just telling us
that “we identify infringements” is insufficient.

Genetski: one of the best ways to do that is incentivize
transparency. Voluntary best practices that elevate the end result for both
sides = greater willingness to share data. Verified rights owner program that
removes/prevents anything from appearing in the first place, then rightsowners
would be willing to share more information and insights, and even set a higher
standard than the DMCA notice required, if the reward for that investment is
commensurate.

Dow: UGC principles were based on that kind of approach.
There is room for transparency on the side of notice recipients—often we don’t
know what goes into things like driving specific results down the search
results.

Von Lohmann: we need more transparency from a group absent
from this panel: the enforcement vendors. We need to understand their cost
structure, how they generate notices, and what checks they use for accuracy.

Cleary: we don’t want transparency to get lost in different
technologies. Independent rightsholders were left behind when ISPs started
blocking P2P and legit content was blocked. Tech neutrality is key.Copyright can’t be a guise for preferring
other copyright owners’ content or excluding us from access to the pipes.

Q: bad notices

Genetski: we don’t like to see bad notices; we set high
standards in sending our notices; we have limited enforcement resources. Our
experience has been in millions of notices we get almost no
counternotices.Those problems fit into
a broader framework of problems; even if you solved those problems, you wouldn’t
have solved the problem of providing meaningful and effective enforcement.
(Also you wouldn’t have solved world hunger, so I guess you shouldn’t try.)

Snead: there needs to be a meaningful way for targets of
takedown notices to communicate with sending entity. All too often there’s
virtually no way to get in touch with outsourced notice providers. If you have
someone who wants to get in touch with them and say “we have the right to do
this” there’s no individual who is following the case; there’s no phone number;
there’s no email address. There needs to be a way—rightsholders need to direct
their vendors—to provide this information.

Von Lohmann: amen.

Q: do we need to have a different conversation for small
providers and big providers?

Cleary: we should have breakout sessions, but any time you
put the big guys in a room together you risk lack of transparency. We are
small, but we produce 80% of the feature films and TV in the country. I want to
be in that room.

McSherry: tends to agree. At the end of the day, meaningful
outcome requires inclusive process. One thing we’ve learned is that internet
users won’t stand for backroom deals. Need lots of participation by rightsholders,
ISPs, technologists—this is too important to leave to lawyers. Also need to
hear from international community. Many activists around the world rely on ISPs
here for expression, and they should weigh in.

Cleary: we represent foreign rightsholders in the US, and
they want more enforcement of their rights in the US, where there’s huge piracy
of their works.

Snead: this shouldn’t be divided into big and small guys.
What we see is that DMCA largely works for small guys, but needs tinkering on
the edges. US is at the center of a lot of internet infrastructure. This
benefits US business. Changes must take this into account or we’ll drive
business away from the US.

Q: small standardizations?

Cleary: voluntary agreement by payment processors for
handling complaints—wanted to standardize a form for every one.It can be done.

Dow: streamlining/effectiveness is worth having, but that’s
setting our sights too low. One vendor from one studio has 39 million notices,
for 87 titles.Those notices went
primarily to 25 sites: 58,000 notices for each one, and all those titles still
remain available on those sites. Huge problem of inefficiency/ineffectiveness
that streamlining notices won’t solve.

Von Lohmann: big numbers alone don’t tell you anything you
want to know.As Genetski said, 22,000
notices can be effective if fast. What we have is a lack of knowledge because
we have a lot of different ISPs doing different things. Sharing knowledge is
useful.

Sheckler: the data are useful, but from where we sit, we’ve
sent 2 million notices to Google and mpcrystal.com (sp?) and the music is
available on that site the next hour. That’s the problem we face. We’d love to
see someone who’s done differently—is music different?

Snead: we already have data that will help rightsholders and
people who are targets take action: a very plain and simple statement under the
DMCA that’s not designed to instill fear or confuse. That’s all that needs to
be done to let people know their rights. Extraneous info serves to make people
afraid and confused.

Genetski: There may be abuse of what’s in the notice, and improvements
to be made, but von Lohmann points out that there’s less transparency at the
ISP stage, in that other 66,000. Why is RIAA sending so many notices?Are they being processed?(Is the RIAA suing that site?)

Snead: if ISPs are employing content protection, above and
beyond the DMCA, they need to offer it to all rightsholders.

Q: whack a mole problem?

McSherry: best alternative is to provide convenient
alternatives. You can’t win whack a mole. Invest resources more productively.

Snead: Provide as much information as you can to the notice
recipients. Let’s get information on the scope of the whack a mole problem.

Dow: we long for the day in which the mole actually goes
into the hole for some period; right now the mole doesn’t even retreat. Look
for tech solutions that are beyond notice and takedown.

Snead: use metadata, fingerprinting, and put all of that to
use to stop whack a mole and make sure content stays down. The goal is reducing piracy so that legit
services flourish, including with fair use.

Sheckler: this is a problem. We agree with the DMCA’s
framework and goals. Let’s work on deterring infringement.

Q: how much do we need more factual foundation? Do the
stakeholder already understand the issues?

Sheckler: we’d all benefit from additional data.

Genetski: the hard part is to avoid being unwieldy. Everyone
needs to share analysis of their own data.Challenging, not impossible. Particularly for vendors with
confidentiality agreements—real constraints, but important voice.

McSherry: we need to understand what innovation/expression
is facilitated by current system to avoid collateral damage.

Snead: begin with what’s working, not with what’s not.

Cleary: agreed, because we don’t understand the search
algorithms.

Q: Is there any entity doing a good thing you want to give a
shout-out to?

Von Lohmann: Microsoft has publicly spoken about its strategies
and practices as rightsholder, been useful and enlightening.

Snead: those outsourced vendors who (1) have an individual
following a case, (2) working, monitored phone number, (3) don’t use a
proprietary method of communication and ID by URL.

Dow: UGC principles as an example of using reasonable
measures to prevent infringement in the first place.

Snead: largest ISPs have worked with us on the voluntary
notice system to make sure all the boxes were checked off; we worked with
Public Knowledge too. Results are encouraging/improving.

McSherry: Google’s transparency report—more should be
following suit.One other service
provider: Automatic, aka Wordpress—they’re one of the few service providers to
join a §512(f) lawsuit, and if more did that we’d see less takedown abuse.

Mark Cooper, Consumer Federation of America: How many search
results were added during this period in which you got 24 million takedown
requests?

Von Lohmann: there are more than a trillion pages on the
web; despite the large number we receive, it is a trivially tiny, infinitesimal
percentage of what we index.

Karen Russell, American Library Ass’n: Public schools,
public libraries, universities are ISPs and have special interests to be
considered.

Von Lohmann: there’s been very little study of the 66,000
registered copyright agents. What’s the breakdown? Many are content owners as
well. Always assumed that 66,000 that register understates the number that rely
on the DMCA; a large number don’t even know that they’re supposed to register
but nonetheless maintain active notice and takedown practices.For those of you listening: do register a
copyright agent!

Joe Keeley, House Judiciary Committee: full copies v. less
than full copies—latter more likely to be fair; possibly that takedown should
work differently?

Von Lohmann: Content ID has the ability to do just that. Or
if the audio track is different from video, another signal of remix. Those
tools are becoming available. Imperfect proxy for full fair use test, but a lot
can be done. Major content owners—movie studios—can be very responsible about
using those tools to avoid targeting likely fair uses; those studios give
credit and others should learn.

McSherry: while there’s no substitute for human review, tech
can be used to flag for what’s likely fair use—saves time and energy.Full copy of video and audio that’s been
taken down before, that can easily match. But then identify and examine the
relatively small but important percentage of uses that are more likely to be
fair.

Cleary: be careful that you’re not dealing with a piece at a
time posting, though.

Dow: tech can be used to flag more likely infringements and
less likely ones—identify same file and make takedown more efficient.

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